About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2011
>>
[2011] ZANCHC 23
|
|
S v Savoi, In re: Savoi (1306/2011) [2011] ZANCHC 23 (7 October 2011)
Reportable:
Circulate
to Judges:
Circulate
to Regional Magistrates
Circulate
to Magistrates:
YES
/ NO
YES
/ NO
YES
/ NO
YES
/ NO
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
1306/2011
Datum verhoor: / Date
heard:
25 / 08 / 2011
Datum gelewer: / Date
delivered:
07 / 10 / 2011
In the matter between:
GASTON SAVOI
…......................................................................
Applicant
and
THE STATE
…..........................................................................
Respondent
In re:
GASTON SAVOI
….....................................................................
Accused
1
RODERIGO SAVOI
….................................................................
Accused
2
ALICIA MARCUS
…....................................................................
Accused
3
TRACY LEE DUTTON
…..............................................................
Accused
4
SANJAY MITHA
….....................................................................
Accused
5
LEONARD DE LANGE
…..............................................................
Accused
6
SHYRES HEALTH (PTY)
LTD
…...................................................
Accused
7
Coram:
Hughes-Madondo AJ
JUDGMENT
HUGHES-MADONDO AJ
[1] In these
proceedings the applicant approaches this court in terms of section
63 of the Criminal Procedure Act 51 of 1977 (the
“Act”)
for an amendment of his bail conditions.
[2] On 25 August 2010
the applicant, CEO of the Intaka Group of companies, was arrested in
Cape Town. His arrest related to charges
of fraud and corruption
allegedly committed in KwaZulu Natal. He was released on bail on the
same day.
[3] Following
investigations he was again arrested in respect of alleged offences
in KwaZulu Natal. This time he was released on
warning. The two cases
in KwaZulu Natal were consolidated and this case is now pending in
the regional court Pietermaritzburg.
[4] In Kimberley
magistrate court under case number B4265/10, the applicant appeared
on 5 November 2010, having been arrested the
previous day. He was
again charged with fraud and corruption and released on R100, 000.00
bail together with bail conditions similar
to the present case. This
case is still pending in the Kimberley magistrate’s court.
[5] On 18 March 2011
the applicant was arrested yet again and appeared in the Kimberley
magistrate’s court. This criminal
case B798/11 was transferred
to this court. The applicant appeared for the first time in this
court on 15 August 2011 when the
case was adjourned to 3 February
2012. This case is presently pending.
[6] Bail was granted in
the Kimberley magistrate’s court by consent in the present case
as follows:
(a) The accused be
granted bail in the sum of R50,000.00 cash AND
(b) Upon payment of
the said sum of money, with the Registrar of Kimberley District Court
or with the Clerk of the Criminal Court
at the magistrates office
serving as the venue for this Court, or with a member of the Prison
Service at Kimberley Prison, the
accused shall be released from
custody on condition that
That the accused be
released on the same conditions as before and the said conditions be
made the Order of this Court.
”
[7] I do not propose to
set out the bail conditions in its entirety and only set out those
pertinent to these proceedings :-
“
2.
The accused shall surrender to the investigating officer or branch
commander his passport;
4.2 Accused shall
not apply for any travel documents throughout the duration of this
matter, unless it is with the approval of the
court upon application;
4.3 The accused is
not permitted to leave the Republic of South Africa without the prior
written consent of the Director of Public
Prosecutions, Northern Cape
and/or investigating officer and/or his brand commander investigating
officer and/or his branch commander
who would issue such written
consent in consultation with the Director of Public Prosecutions;
4.4 The accused is
not permitted to enter the premises or any point of entry or
departure without the written consent of the Director
of Public
Prosecutions, Northern Cape and/or investigating officer and/or his
branch commander who would issue such written consent
in consultation
with the Director of Public Prosecutions, Northern Cape.
”
[8] In terms of this
order the applicant was not permitted to travel outside South Africa
without the permission of the Director
of Public Prosecutions (DPP)
Northern Cape and/or the Investigating Officer and/or the Branch
Commander. He would also have to
surrender his passport to the
Investigating Officer or his Branch Commander.
[9] Currently there are
three criminal matters against the applicant. The initial one is in
KwaZulu Natal, Pietermaritzburg regional
court. The second is case
number B4265/10 pending Kimberley magistrate’s court and lastly
this matter, case number B798/11
now pending before this court.
[10] In all three
matters the bail conditions are identical but for the amount
allocated for bail. The conditions pertaining to
the applicant’s
permission to travel outside South Africa are identical.
[11] In this
application, the applicant seeks an amendment of the previous order
to the extent that he can travel outside South
Africa, on business,
without permission of the DPP and/or Investigating Officer and/or
Branch Commander.
[12] For ease of
reference section 63(1) of the Act states:
“
(1)
Any court before which a charge is pending in respect of which bail
has been granted may, upon the application of the prosecutor
or the
accused, increase to reduce the amount of bail determined under
section 59 or 60 or amend or supplement any condition imposed
section
60 or 62, whether imposed by that court or any other court, and may
where the application is made by the prosecutor and
the accused is
not present when the application is made, issue a warrant for the
arrest of the accused and, when the accused is
present.
”
[13] Section 63
provides the necessary procedure for instances
where changed
circumstances require appropriate amendments
to the conditions of
bail fixed at an earlier stage. See
Du Toit
et al:
Commentary on
Criminal Procedure Act
>.
[14] The applicant’s
case is that there exist changed circumstances that warrant him
bringing this application for the amendment
of his bail conditions.
[15] I now turn to deal
with these changed circumstances. During March 2011 it became
essential for the applicant to travel to Angola
on business relating
to the Intaka Group. This business trip was scheduled for the period
of 4 July 2011 to 7 July 2011.
[16] As required in
terms of his bail conditions, the applicant sought permission to
travel from the relevant authorities. In regard
to the two criminal
cases pending in the Northern Cape, during March 2011, the applicant
wrote to Detective Lieutenant Colonel
Dylan Perumal (“Perumal”),
the Investigating Officer in the Northern Cape.
[17] Perumal requested
that the applicant obtain confirmation from Angola that this visit
was required. The applicant did so and
transmitted it to Perumal.
However no reply was forthcoming from Perumal.
[18] On the advice of
his legal representative, the applicant proceeded with substantive
applications in all the courts where criminal
matters were pending
against him. The purpose of which was to elicit a response from the
relevant authorities.
[19] The first
application was set down for hearing on 22 June 2011 in the
Pietermaritzburg regional court, KwaZulu Natal. A consent
order was
granted, in terms of which it was ordered that the applicant was
permitted to travel to Angola departing South Africa
on 4 July 2011
and returning on 8 July 2011. The Prosecutor, Advocate Knorx Molelle
of the Asset and Forfeiture Unit, the Investigating
officer and the
representative of the curator Mr Eugene Nel consented to this order
being granted.
[20] Perumal was
advised of the KwaZulu Natal consent order. He however refused to
grant the applicant permission to travel. As
a result, in case
B4265/10 a substantive application was initiated in the Kimberley
magistrate’s court on 27 June 2011. That
application was
brought in terms of section 63 of the Act and was opposed by the
Deputy Director of Public Prosecution of the Northern
Cape, Advocate
Tshweu and Perumal.
[21] The grounds relied
upon and set out by the applicant in its papers in both KwaZulu Natal
and Kimberley magistrate’s court
were identical. The opposition
by Perumal in Kimberley magistrate’s court was that the consent
order of KwaZulu Natal was
not binding on the charges preferred
against the applicant in the Northern Cape and that he was not
convinced that it was necessary
for the applicant to travel to
Angola.
[22] An order granting
the applicant permission to travel was granted by the Kimberley
magistrate’s court. This order was
similar to the consent order
of KwaZulu Natal. However Perumal still persisted with his refusal to
allow the applicant to travel.
[23] The applicant
submitted in his affidavit and in argument that he had abided with
his bail conditions and sought permission
to travel as required,
however the relevant authorities in the Northern Cape were not acting
reasonably and justly in the circumstances
in considering and
granting him permission to travel.
[24] It was further
submitted in argument on behalf of the applicant that the conduct of
the relevant authorities in their persistent
refusal to allow him to
travel even in the face of two court orders created the existence of
changed circumstances which now required
appropriate amendments to be
made to his bail conditions. These are specifically related to his
ability to travel abroad for Intaka
Group business in the future.
[25] It has always been
the position of the respondents that the applicant was not a flight
risk and this position still persists.
Further, the respondent
conceded that when the consent order was sought in Pietermaritzburg
the relevant authorities were well
aware that there were other bail
orders made in the other courts.
[26] This concession
was made by the respondent during the proceedings in the Kimberley
magistrate’s court. The presiding
officer in the Kimberley
magistrate’s court went so far as to say that the bail
conditions in all three matters were “dead
similar”.
[27] Even after
Kimberley magistrate’s court granted the applicant permission
to travel, Perumal still persisted in his opposition.
His persistence
was that there were no compelling reasons or explanations put forward
to indicate to him that it was imperative
for the applicant to travel
to Angola.
[28] As there had been
no successful appeal against these relaxation orders both were still
valid court orders when Perumal yet
again refused the applicant
permission to travel.
[29] Evidently by the
respondent’s refusal to grant the applicant permission to
travel as set out in these orders amounted
to the respondent defying
at least one lawful court order that directly instructed him to grant
the applicant permission to travel.
I am referring to the Kimberley
magistrate’s court order.
[30] In my view the
respondents were not acting as contemplated by the bail conditions
set out above and I must concur with the
applicant that indeed there
now existed changed circumstances to warrant that the applicant seek
recourse in terms of section 63
of the Act. See
Shefer v Director
of Public Prosecutions Transvaal
2004 (2) SACR 92.
[31] I now turn to deal
with the proposed amendment sought by the applicant.
[32] The applicant
requests that this Court amend the bail conditions as follows:
“
1.
The applicant’s attorneys, Edward Nathan Sonnenbergs, Cape
Town, shall retain the applicant’s passport which will
only be
returned to the applicant for business-related travel;
2. the applicant
shall notify the investigating officer in writing of proposed travel
outside the Republic of South Africa at least
10 days before his
proposed date of departure;
3. the applicant
shall furnish the investigating officer with a full itinerary of his
intended travel at least 7 days before departure;
and
4. the applicant may
only travel outside the Republic of South Africa for business
purposes and each such trip shall not exceed
14 days, inclusive of
the date of departure and return.
”
[33] It is a well known
fact that bail conditions must be subject to the control and scrutiny
of the authorities, must also be such
that they are in the interest
of justice and practically feasible. See
Rex v Fourie
1947 (2)
SA 547 (O) at page 577, Fischer, JP said that the proposal put
forward on behalf of the accused in respect of bail did
not “
seem
practical… it is difficult to see how the police can exercise
sufficiently close supervision over the accused to ensure
the
fulfilment of these conditions. The suggestion does not offer a
solution of the difficulties attendant on the accused being
admitted
to bail.
”
[34] The critical
concern of the applicant is the manner in which the DPP and/or the
Investigating Officer are exercising their
powers in granting and
refusing him permission to travel outside of South Africa. In his
view the permission is being unreasonably
withheld.
[35] On an examination
of the amended conditions proposed by the applicant to my mind this
merely results in a shift of power and/or
control over the
applicant’s movements from the respondent on the one hand to
the applicant’s representative on the
other.
[36] The amendment
proposed results in there being two different sets of bail conditions
that would govern the applicant’s
conditions to travel. Those
conditions in Pietermaritzburg and Kimberley magistrate’s
courts will be the same whilst the
proposed conditions sought to be
imposed by this court would differ.
[37] There are no
statutory rules regulating the effect of previous decisions of other
or the same courts however by virtue of the
maxim of
stare decisis
(stand by the decision),
the Kimberley magistrate’s court
will be bound to abide by decisions made by this court. What happens
to the order in KwaZulu
Natal which is different from the proposed
order and KwaZulu Natal is another jurisdiction altogether. The
courts in KwaZulu Natal
Provincial Division are not bound to follow
orders made in the Northern Cape Provincial Division. See
Metropole
Building (PTY) Limited v Lovell
1939 WLD 172 at 177.
[38] The fact that
there would be two different orders governing the travel of the
applicant clearly does not conform to the notion
that bail conditions
should be practically feasible. The practical problems that this
would give rise to are:-
who would now be the
holder of the applicant’s passport, the applicant’s
representative, as proposed in this division
or the authorities as
already set out in KwaZulu Natal division. This will surely create
confusion as regards the holder of the
applicant’s passport.
how would the
applicant’s movements be monitored, as these will no longer be
subject to the control and scrutiny of authorities
concerned. This
will be defeating the purpose of bail.
[39] Currently all
three bail orders are similar and enforceable. If this court acceded
to the applicant’s request the proposed
amendment would create
a situation where the orders would be in conflict with each other.
One set of rules will govern KwaZulu
Natal and Kimberley magistrate’s
court while another will govern this matter. None of the orders would
then be enforceable,
as already stated they would be in conflict with
each other.
[40] On the facts of
the present case it is evident to me that compliance by the DPP
and/or the Investigating Officer to control
and scrutinise the
movements of the applicant to ensure that he stands trial would be
impossible with the proposed order. The lack
of control and scrutiny
would leave the respondent’s with no powers to ensure that the
applicant actually stands trial. It
would also create impossibility
as regards the applicant in that he would not be able to ignore the
KwaZulu Natal order which has
a different set of rules set out in
order to obtain permission to travel.
[41] “
It is
trite that a court will not engage in a futile exercise of making an
order which cannot be carried out”.
See
Administrator
Cape and Another v Ntshwaqela and Others
1990 (1) SA 705 at
720C-D.
[42] It has been said
that if an order is unenforceable then that court had no jurisdiction
in granting such an order. A court will
not make an order that it
cannot enforce. The principle of effectiveness relates to the courts
power to give an effective judgment
and not merely exertion of its
powers in a particular case. See
Metlika Trading Ltd v
Commissioner SARS
2005 (3) SA 1 (SCA) at 15 paragraph 36G-H.
[43] In the result even
though the applicant has made out a case that changed circumstance
exist that permit him to seek an amendment
to his bail conditions as
regards his travel, the proposed amendment taking into account these
circumstances, to my mind, will
not be able to be enforced nor
carried out and as such it would be futile to make such an order that
no effect can be given to.
[44] Even though the
unreasonable conduct of the respondent led to the applicant seeking
recourse from the courts. The nature of
such proceedings is such that
no order as to costs is applicable.
For the reasons set
out above the application is dismissed. No order as to costs.
___________________________________
W HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE HIGH
COURT, KIMBERLEY
On
behalf of Applicant:
Adv. F. van Zyl SC
o.i.o
Haarhoffs Inc.
On
behalf of Respondent:
Adv. Tshweu
o.i.o The Director
of Public Prosecutions